Implementing the Prohibition of Torture on Three Levels: United Nations –
Council of Europe – Germany
Prof. Dr. Joachim Herrmann, Augsburg*
I. Introduction
Criminal justice and torture have a long common history that
continues to the present day. There was a time when torture
was on the European continent officially accepted as a necessary instrument for enforcing criminal justice. Under the
Roman-Canon law of evidence, the court could in cases of
serious crimes convict the accused only upon the testimony
of two unimpeachable eyewitnesses or upon his or her confession. Whenever there was some suspicion that the accused
had committed a crime but no two witnesses were available
and the accused refused to confess, the court could order an
examination under torture. From the 13th to the 16th century,
torture was widely practiced in continental European countries to extract confessions.
In the course of the 16th century, milder sanctions, for example penal servitude instead of the death penalty or corporal
punishment, were introduced and the rigid law of evidence
began to change. Less severe punishment could be imposed if
there were no two eyewitnesses and no confession. As a
consequence, the use of torture went into decline. Fundamental criticism of torture came with the Enlightenment and the
Natural Law philosophy, a human rights oriented philosophy
in the 17th and 18th century. The idea that the state has absolute power over the individual was no longer accepted. The
individual was given inalienable rights that could principally
not be invaded by the state. In addition, torture was criticized
from a practical point of view. Cesare Beccaria, the famous
Italian scholar of criminal justice, wrote in 1764 that torture
is a perfect instrument for acquitting the criminal who is
strong enough to tolerate the pain of torture, and for convicting the innocent who is too weak to suffer. In view of this
criticism, torture was, starting with the late 17th century,
gradually abolished in the continental European countries.
This was, however, not the end of torture in Europe. In
the 20th century totalitarian regimes came into power in the
Soviet Union, Germany, and several other European countries. Citizens lost the freedom they had gained during times
of individual liberalism. They were turned into subordinates
who were subject to the dictates of the state. Police and other
government institutions felt free, on a large scale and systematically, to practice torture as an instrument to exercise
power. They acted without any legal authorization and, therefore, committed their atrocities mainly in secret. As is well
known, this brought tremendous amounts of pain and suffering not only to individual persons but also to whole groups of
people.
It did, therefore, not come as a surprise that after the end
of World War II steps were taken on national and international level to build barriers against the barbarism the world
had experienced. Legislation was passed on national level,
*
Paper presented at the “International Conference on the
Implementation of the Torture Conventions and Criminal
Justice Reform in China” held at Beijing University.
and international treaties were concluded to ban the use of
torture. As a consequence, in European countries today three
legal barriers against torture can be distinguished – national
legislation, the United Nations instruments and European
instruments.
II. Legal Barriers against Torture on Three Levels
1. National Legislation – Germany
The German Constitution provides that a detained person
“may not be subjected to mental or physical ill-treatment”.
There is, however, no provision in the Constitution explicitly
outlawing torture. Following continental European tradition,
the protection of individual rights in the German Constitution
is phrased in abstract and general terms. The German Constitution places human dignity at the center of individual rights
by declaring in its first Article that “the dignity of man is
inviolable” and that it is the duty of all public authority to
“respect and protect” it. Together with the constitutional
provision that “everybody has a right to physical integrity”,
the human dignity-clause is construed to forbid torture and
any cruel, inhuman and degrading treatment or punishment.
To make this protection effective, the German Constitution
guarantees that anyone whose rights have been violated by a
public authority can file a complaint with a court. Courts are
considered to be the watchdog to protect the individual
against invasions by other governmental powers.
In view of the atrocities committed by criminal justice authorities during times of Nazi dictatorship, in 1950 special
provisions were added to the German Criminal Procedure
Code prohibiting improper methods of interrogating the suspect, the accused, and witnesses. The Code provides that a
person’s “freedom to determine and exercise his will shall not
be impaired by ill-treatment, fatigue, physical interference,
the administration of drugs, torment, deception or hypnosis.
Coercion may only be applied to the extent permitted by
criminal procedure law”, and “threatening with measures not
permitted by criminal procedure law” is prohibited. To enforce the prohibitions, the Criminal Procedure Code provides
that statements obtained in violation of these rules may not be
used as evidence, even if the interrogated person should agree
to their use.
There can be no doubt that these prohibitions set, to some
extent, higher barriers for interrogation activities of German
criminal justice authorities than the prohibitions of torture,
cruel, inhuman and degrading treatment that exist on international level. Fatigue and deception, which are outlawed under
German law, are generally not considered part of torture,
cruel, inhuman or degrading treatment. German courts held,
for example, that a confession could not be used as evidence
in a case where the police told the suspect that they had
overwhelming evidence of his guilt even though they had
only little suspicion. Likewise, a confession was excluded
where the police had, without interruption, interrogated the
suspect for thirty hours. The reason for these strict standards
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is the idea that the free will of the individual and human dignity must be protected in a comprehensive way.
The protection against torture, cruel, inhuman and degrading treatment is also enforced with the help of the German
criminal law. The German Penal Code provides criminal
sanctions for causing bodily injury, coercion, and extraction
of testimony by duress.
The Rome Statute of the International Criminal Court defines in Articles 7 and 8 crimes against humanity and war
crimes. Both Articles include acts of torture. The Rome Statute was ratified by Germany, so its provisions have become
part of German law. Consequently, acts of torture defined in
Articles 7 and 8 can be punished by German courts.
2. United Nations Instruments and Institutions
The Universal Declaration of Human Rights of 1948 was the
first United Nations instrument to prohibit torture as well as
cruel, inhuman or degrading treatment or punishment. This
provision was reproduced in Article 7 of the International
Covenant on Civil and Political Rights that was adopted by
the General Assembly in 1966 and entered into force in 1976.
Article 7 went, however, an important step beyond the Universal Declaration because it prohibits medical or scientific
experimentation without the free consent of the person concerned. Unlike other Articles protecting human rights in the
International Covenant, Article 7 does not allow any exceptions to be made in cases of emergency. On the other hand,
the International Covenant does not institute any mechanism
for enforcing or supervising the protection of human rights. It
is rather left to the signatory states to take the necessary steps
for protecting the individual.
As torture was still widely practiced in many countries,
the Swedish Government took the initiative and brought the
subject before the United Nations General Assembly in 1973.
Upon a Swedish proposal, the General Assembly in 1975
adopted the “Declaration on the Protection of All Persons
from Being Subjected to Torture or Other Cruel, Inhuman or
Degrading Treatment or Punishment”. The Declaration was a
non-binding instrument but it defined, for the first time, the
concept of torture and it listed measures to be taken by the
individual countries to abolish torture.
Again upon a Swedish suggestion, the General Assembly
agreed in 1977 that work on a binding treaty prohibiting
torture should be started. Because of political controversies it
took a long time before the “Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment” was finally adopted by the General Assembly in 1984.
The Convention which entered into force in 1987 can, however, only be considered a first step towards improving legal
barriers against torture.
The Convention contains an official definition of torture.
According to the definition, torture comprises three elements.
An act must inflict severe, physical or mental pain and suffering; the act must be committed intentionally; and the act must
be committed for a purpose, such as obtaining a confession or
punishing someone.
The Convention provides, however, important exceptions
from the definition of torture. “Pain or suffering arising only
from, inherent in or incidental to lawful sanctions” is not
considered part of torture. This clause, which obviously is a
product of political compromise, opens the door to diluting
the protection the Convention is supposed to bring. Islamic
signatory states are allowed to continue imposing traditional
sanctions, such as stoning, flogging or amputations of hands,
as long as such sanctions are authorized by their national
laws.
The Convention does not try to define cruel, inhuman or
degrading treatment or punishment. The reason is that the
Convention is mainly concerned with the suppression of
torture. It is left to the signatory states to prevent in their
territories acts of cruel, inhuman or degrading treatment or
punishment. The signatory states are required to take steps
necessary to prohibit torture and other acts of ill-treatment.
The Convention establishes a system of international supervision with the help of the “Committee against Torture”.
The Committee consists of ten experts who meet twice a year
in Geneva. Signatory states are obligated to report every four
years to the Committee on their activities under the Convention. In addition, the Committee relies on a great number of
reports submitted by non-government organizations.
The Committee can start its own inquiries if it is informed
that torture is systematically practiced in a country, but its
power to investigate is limited. Signatory states and victims
of torture can, under certain conditions, file a complaint with
the Committee, but after investigating the case, the Committee can only communicate its views to the parties concerned.
The Committee is a non-judicial institution and, therefore,
not authorized to decide on individual complaints or award
compensation.
During the debates on the Convention against Torture,
Costa Rica in 1980 presented a draft of an Optional Protocol
proposing a more effective control of torture. According to
this Protocol, international inspection teams should be authorized to visit, on their own initiative, prisons, detention
facilities, and other places where torture was allegedly practiced. It was argued that unannounced visits would help revealing instances of torture. Reports published by the inspection teams were expected to have a general deterrent effect.
This proposal was, however, not successful because opposition came from several countries.
Some years later, the proposal to have visits by international inspection teams was back on the agenda of the United
Nations. In 2002, the General Assembly adopted the Optional
Protocol to the Convention against Torture. The Optional
Protocol took an important step beyond the Convention by
providing for, among other things, a “Subcommittee on Prevention” that is authorized to pay regular visits to signatory
states. The states are obligated to grant members of the Subcommittee unrestricted access to any place where a person is
or may be detained. Ad hoc visits are, however, not permitted
under the Protocol. States must provide the Subcommittee
with all relevant information it might request. The Subcommittee may make recommendations and observations but it
has no authority to decide a case. To date, the Optional Protocol did not enter into force because it was not yet ratified
by the required number of countries.
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Germany is among those countries that did not yet ratify
the Optional Protocol but ratification procedures have begun.
Germany ratified, however, both the International Covenant
and the Convention against Torture, so they have become
part of German national law.
As required by the Convention against Torture, Germany
submitted several reports to the Committee against Torture.
In its comments on the German reports, the Committee criticized, among other things, that “the precise definition of
torture, as contained in Article 1 of the Convention, has still
not been integrated into the German legal order”. This criticism does not seem well founded because Article 1 has become part of German law after Germany ratified the Convention. In addition, all instances of torture listed in Article 1 of
the Convention are crimes under the German Penal Code.
Another criticism leveled by the Committee against Torture was to be taken more serious. The Committee was concerned about “the large numbers of reports of police-illtreatment, mostly in the context of arrest” that it had received
from non-governmental organizations. The Committee also
pointed out that in several cases, German police authorities
laid criminal defamation charges against persons who had
complained about ill-treatment by a police officer. German
authorities answered to this criticism that each individual
case reported by the Committee was carefully investigated to
make sure that ill-treatment by the police would be discontinued. It must be pointed out, however, that German media,
still today, report about cases of ill-treatment by the police.
3. European Instruments and Institutions
a) European Conventions
Protection against torture in Europe is structured in a similar
way as on United Nations level. European protection is, however, more comprehensive and considerably more effective
than protection by the United Nations instruments.
In 1950 the Consultative Assembly of the Council of
Europe adopted the European Convention on Human Rights
and Fundamental Freedoms. The Council of Europe was
founded in 1949 to promote the unity of European democracies. It is an institution different from the European Union
that did not yet exist at that time. The European Convention
of 1950, which became effective in 1953, is an international
treaty comparable to the International Covenant of the United
Nations. Article 3 of the European Convention provides that
“no one shall be subject to torture or inhuman or degrading
treatment or punishment”.
Unlike the UN instrument, Article 3 does not explicitly
prohibit “cruel” treatment or punishment. The reasons for
excluding “cruel” are not recorded. Obviously, “cruel” was
considered unnecessary because it is covered by torture and
inhuman treatment or punishment. Continental European
legislation tends to be concise, omitting details not considered necessary.
Like the International Covenant, the European Convention provides that no exception can be made from the prohibition of torture. The prohibition must also be enforced in times
of war or other emergency.
Germany ratified the European Convention in 1952, so its
provisions have become part of German national law. Technically, the Convention is accorded the rank of an ordinary
German statute, but there is general agreement in Germany
that the Convention has a somewhat higher status. Contrary
to the rule that later legislation takes priority over older law, a
German statute enacted after ratification of the Convention
could not simply abrogate its provisions. All German law
must be interpreted as to conform to the requirements of the
Convention because the legislature is presumed not to violate
Germany’s international obligations when enacting new legislation. In addition, the Convention is considered a special
instrument for the protection of human rights that must take
precedence over ordinary statutes.
Following the model of the UN Convention against Torture, the Council of Europe in 1987 adopted the European
Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment. Germany ratified the
European Anti-Torture Convention in 1989, and in the same
year the Convention became effective.
Unlike the UN Convention, the European Anti-Torture
Convention does not define torture. It was feared that a definition listing particular instances to be considered as torture
could be dangerous, because what is not explicitly prohibited
might be taken as allowed. Following continental European
tradition, definitions are generally not included in legislation.
b) The European Anti-Torture Committee
To strengthen the protection against torture, the European
Convention established an Anti-Torture Committee with
powers similar to the ones Costa Rica in 1980 had proposed
on United Nations level. However, delegations of the European Anti-Torture Committee carry out periodic visits to
member states of the Council of Europe. Delegations may
also pay ad hoc visits to individual states. The state to be
visited must be notified of an intended visit, but an ad hoc
visit may take place immediately after notification. The delegation is authorized to inspect any place where persons are
detained and conduct interviews in private. The visits are
comparable to the visits conducted by the International
Committee of the Red Cross.
After a visit the Anti-Torture Committee will draw up a
report and, if necessary, make recommendations. The purpose of the report is not to condemn a state but to improve the
protection against torture. The state that receives a report of
the Committee has a right to answer. Under the Anti-Torture
Convention cooperation between the Committee and the
individual state should be strictly confidential. If a state does,
however, not co-operate or refuses to follow recommendations, the Committee can issue a public statement.
Today, most reports of the Anti-Torture Committee are
published with the consent of the states concerned. For example, in December 2005 the Anti-Torture Committee published a report on a visit a delegation had carried out to Germany. The report explained which places the delegation had
visited and which officials it had interviewed, but the Committee saw no reason to suggest any changes. However, after
recent visits to other states, mainly states in east and south-
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east Europe, the Anti-Torture Committee considered it often
necessary to make recommendations for improving the position of detained persons. Consultations between the Committee and the states took place and in most cases the states published an answer explaining what steps they were going to
take to strengthen the protection of detainees.
In the day-to-day practice the European Anti-Torture
Committee seems to function as an effective control mechanism. Reports published by the Committee show that it carried out rather thorough investigations and that it entered into
close cooperation with the individual states. Such cooperation
is possible because all European states are neighbors, most of
them living under the common roof of the European Union.
In view of this, it remains to be seen whether the UN Subcommittee on Prevention of Torture will be able to exercise a
similarly tight control once the Optional Protocol will have
entered into force.
Another question is whether the UN Committee against
Torture and the European Anti-Torture Committee are not
doing the same job. Is it really necessary that the two institutions, one residing in Strasbourg, France, the other nearby in
Geneva, Switzerland, work side by side as far as the supervision of European countries is concerned? The problem will
become even more urgent once the United Nations Optional
Protocol will have entered into force and the UN Subcommittee on Prevention will, like the European Anti-Torture Committee, pay regular visits to signatory states. It would seem
advisable to coordinate, if not integrate, their functions on
European level.
c) The European Court of Human Rights
In addition to the European Anti-Torture Committee there is
still another European institution to enforce the protection
against torture. As provided by the European Convention on
Human Rights, the European Court of Human Rights was set
up in 1959. This Court, which is located in Strasbourg, serves
as a watchdog to enforce the rights guaranteed by the Convention. European citizens who have exhausted all remedies
before their national courts may lodge a complaint with the
European Court claiming that one of their rights protected by
the Convention was violated. Review by the European Court
has turned out to be an effective tool because the Court held,
in a great number of cases, that national law was not in conformity with the requirements of the European Convention.
There is also a considerable number of cases in which the
Court found a failure to comply with the prohibition of torture provided for by Article 3 of the Convention. In the
course of the years, the European Court has developed a rich
case law interpreting the concepts of torture, inhuman and
degrading treatment or punishment.
In its judgments the European Court determines whether
or not a state violated a provision of the Convention. Judgments of the Court are declaratory rather than prescriptive;
the Court has no power to repeal national legislation or quash
administrative or judicial decisions. Judgments are, however,
binding on the respondent state because they obligate the
state to take the necessary remedial measures. In some cases
European states had to change their national legislation in
order to make it conform to the requirements the European
Court had expressed in its judgment. Decisions of the European Court are binding only on the parties in the individual
case, but they often serve as guidelines to be followed by all
European states.
If the European Court finds there has been a violation of
the European Convention, it may award “just satisfaction” to
the injured party. The Court may order the respondent state to
pay compensation for pecuniary and also for non-pecuniary
damages.
Following its policy of not directly interfering with national law, the European Court never held that improperly
obtained evidence must be excluded. As a consequence, the
Court refused to exclude evidence procured by torture, even
though torture must be considered a most serious violation of
human rights protected by the European Convention. The
Court rather concluded that “it is not for the Court to substitute its views for that of the national courts which are primarily competent to determine the admissibility of evidence”.
Originally, there was also a European Commission of
Human Rights which served as a filtering body before cases
could go up to the European Court. Complaints of alleged
breaches of the Convention had to be brought before the
Commission. If the Commission did not manage to obtain a
friendly settlement, it drew up a “report” and the case went
through several procedural steps until it was eventually presented to the Court. To simplify the supervisory machinery of
the Convention and to strengthen its judicial character, the
Commission was abolished in 1998. Today, complaints can
be lodged directly with the Court. Reports the Commission
prepared during its existence are, however, still an important
source of information as to the interpretation of the Convention.
III. Article 3 of the European Convention
1. Definitions
a) Torture
The European Commission made the first attempt to define
torture and to distinguish it from inhuman and degrading
treatment or punishment in 1969 in the case of Denmark et
al. v. Greece1. The case was concerned with the deplorable
conditions in Greek detention facilities where political prisoners were kept after a coup of the Greek Army. The Commission stated that treatment or punishment is inhuman if it
deliberately causes severe physical or mental suffering. Torture was defined as a particularly serious and aggravated
form of inhuman treatment committed deliberately and with
the purpose of obtaining information or inflicting punishment. Degrading treatment or punishment constitutes a category by itself requiring severe humiliation or coercion of a
person to act against his or her own will or conscience.
The Commission’s definition of torture is similar to the
definition in the UN Convention against Torture. Provisions
of the UN Convention are not binding on European institutions but they are used in interpreting European law.
1
24.1.1968, Yb 12, 186.
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In practice, torture and inhuman treatment are mainly distinguished on the basis of the difference in the intensity of the
suffering inflicted. Factors to be used in measuring the intensity of suffering are the duration of the ill-treatment, its
physical and mental effects, the victim’s sex, age and state of
health, and the manner and method of the treatment. Acts
which inflict pain of great severity are generally considered
torture, irrespective of the sex, age and mental constitution of
the victim.
The landmark case of Ireland v. United Kingdom2 shows,
however, that a fixed line can hardly be drawn between torture and inhuman treatment. The case involved the “five
techniques” the British police had used when interrogating
alleged Irish terrorists. The “five techniques” were similar to
the ones that members of the US Army in more recent times
used in the Abu Ghraib prison in Baghdad. Detainees’ heads
were covered with dark bags; detainees were subjected to
continuous loud noise; they were deprived of sleep, food and
drink; they were forced to stand for longer periods in a stressful position. The European Commission concluded in 1972
that the “five techniques” constituted torture. However, five
years later the European Court classified the “five techniques” only as inhuman and degrading treatment. The Court
reasoned that the “five techniques” did no not cause “suffering of the particular intensity and cruelty implied by the word
torture”. Perhaps, the Court was, to some extent, motivated
by political considerations. The Court might have been reluctant to attach the special stigma of torture to the United Kingdom.
It took until 1996 before the European Court in the case
of Aksoy v. Turkey3 determined, for the first time, that police
activities amounted to torture. In this case Turkish police had
tied the arms of an alleged member of the Kurdish autonomy
movement together behind his back and suspended him by
his arms. As a consequence, both arms were paralyzed. In
later cases the Court considered police activities to be torture
where a Kurdish woman was raped in Turkish police custody
(Aydin v. Turkey, 19974) and where police officers subjected
a detainee to a large number of severe blows covering almost
all of his body. The officers pulled his hair and made him run
a kind of gauntlet, thus causing severe physical pain and
emotional pressure (Selmouni v. France, 19995). The Court
indicated in the last case that a more advanced understanding
of human rights will require evaluating activities as torture
that in former times were only considered inhuman treatment.
provide medical treatment were considered inhuman when
the treatment went beyond a minimum level of severity. The
same was true as to gross overcrowding and squalid conditions of detention cells as well as the strict separation of detainees from their families. In Selcuk v. Turkey (1998)6 the
destroying of the home and all other personal belongings by
security forces, so the victims were left without shelter, was
judged inhuman treatment. In the famous case of Oecalan v.
Turkey (2003)7, the leader of the Kurdish separatist organization, the European Court held that the death penalty was
inhuman punishment because it was imposed by military
judges who were not independent.
As a general rule, treatment or punishment is considered
inhuman only if the authorities act with intent to cause suffering and distress. The Court and the Commission concluded,
however, in several cases that inhuman treatment or punishment does not always require intent. In the case of Kalashnikov v. Russia (2002)8 a prisoner got seriously sick while he
was being held in an overcrowded cell with deplorable sanitary facilities. The Court found this type of punishment to be
inhuman even though it could not be assumed that the prison
authorities had acted with any intent to cause harm. By dispensing with the intent requirement in such cases, the European Court obviously tried to help improving prison conditions in Russia and other East European countries. It may
therefore be expected that in the next years more complaints
will be coming from those countries.
b) Inhuman Treatment or Punishment
As noted above, ill-treatment is considered inhuman, if it
deliberately causes severe suffering but does not have sufficient intensity or purpose to be classified as torture. The
European Court and the Commission decided in a great variety of cases that treatment or punishment was inhuman.
Withholding of food and water from detainees and failure to
c) Degrading Treatment or Punishment
There is general agreement that treatment and punishment are
degrading if they arouse in the victim feelings of fear, anguish and inferiority and, thus, violate the victim’s dignity or
physical integrity. While torture and inhuman treatment or
punishment requires physical or emotional suffering, an act is
degrading if it severely humiliates the victim. Typical instances are the breaking down of the physical or moral resistance of a person or driving a person to act against his or her
will or conscience.
The first major case where the European Court had to deal
with the concept of “degrading” treatment was Tyrer v.
United Kingdom (1978)9, a case concerning corporal punishment. Under the penal law of the Isle of Man, a small British
island in the Irish Sea, a 15 year old boy was sentenced to
three strokes with a birch rod. The punishment was administered by a police officer in a police station. The European
Court determined this type of punishment to be degrading
because it involved “institutionalized violence” that treated
the boy “as an object in the power of the authorities”. In
subsequent decisions the court found, however, that moderate
corporal punishment administered in schools did not amount
to degrading treatment.
When deciding whether a particular treatment or punishment was degrading, the Court and the Commission always
2
6
3
7
18.1.1978, Series A 25.
18.12.1996, ECHR 1996-VI.
4
25.9.1997, ECHR 1997-VI.
5
28.7.1999, ECHR 1999-V.
24.4.1998, ECHR 1998-II.
12.3.2003, ECHR 2003 no.46221/99.
8
15.7.2002, ECHR 2002-VI.
9
25.4.1978, Series A 26.
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tried to steer a middle course. Bodily searches of prisoners
were generally not considered degrading. It was different,
however, when the body of a prisoner was thoroughly
searched every week, even though there was no suspicion
that something might be found. Ordinary disciplinary measures imposed by prison authorities were not held to be degrading. Article 3 was, however, breached in a case where
elderly and sick detainees were forced to do exhausting
physical exercises.
The Commission and the Court also found that institutional racism and other kinds of discrimination could amount
to degrading treatment. In the case of Smith and Grady v. the
United Kingdom (1999)10 a group of individuals had been
dismissed from the British Armed Forces for their sexual
orientation. Using careful language, the Court reasoned that it
“would not exclude that treatment which is grounded upon a
predisposed bias on the part of a [...] majority against a [...]
minority could, in principle, fall within the scope of Article
3”. The Court found, however, that in the individual case the
dismissal from the Army could not be considered degrading.
tive”, the Court found a breach of Article 3 and also a neglect
of the general duty of the member states under the Convention “to secure to everyone within their jurisdiction the rights
and freedoms defined in [...] (the) Convention”.
In the already mentioned torture case of Aksoy v. Turkey12, the European Commission even took an additional
step. As Turkish authorities did not sufficiently cooperate in
trying to find out what had happened to Aksoy, delegates of
the Commission went to Turkey to hear witnesses. The
Commission, thus, acted like a first-instance court of fact to
find out the truth.
The cases demonstrate how the Court, and in former
times also the Commission, tried, with the help of procedural
mechanisms, to turn the European Convention into an effective tool for protecting human rights.
2. Burden of Proof and Duty to Investigate
Persons who suffered injuries while being detained often
have difficulty proving that the injuries were caused by police
officers or prison authorities. The European Court and the
Commission tried to solve this problem in two different
ways.
In the case of Ribitsch v. Austria (1995)11 the suspect Ribitsch had sustained injuries – severe bruises and a cervical
syndrome – while being in police custody. Ribitsch claimed
that he was severely punched and kicked by police officers
who questioned him. The police officers contradicted his
allegation explaining that Ribitsch, who was handcuffed, had
injured himself. They maintained that when Ribitsch tried to
get out of the police car, he slipped and banged into its rear
door.
Ordinarily, Ribitsch would have had to prove his allegations. The European Court pointed out, however, that in such
situations where typically no independent witnesses are
available, the injured person would hardly have any chance to
prove the truth of his or her allegations. The Court therefore
reversed the burden of proof imposing, in this case, an obligation on the Austrian police to provide a plausible explanation of how the injuries were caused. The Court found the
explanation of the Austrian police that Ribitsch had injured
himself unconvincing. Consequently, the Court concluded
that Ribitsch had undergone ill-treatment which amounted to
inhuman and degrading treatment.
In other cases where the victim could not prove that he or
she was ill-treated by the police, the European Court took a
somewhat different approach. The Court held that after the
victim has raised a reasonable suspicion of ill-treatment, the
Convention requires an investigation to be conducted by the
national authorities. If no investigation was carried out or if
an investigation was not “sufficiently thorough and effec-
IV. Extradition and Deportation
The European Convention on Human Rights does not provide
for a right to remain in one of its signatory states. The European Court and the Commission decided, however, in several
cases that a person may neither be extradited nor deported to
a country where he or she might be subjected to torture or
any other kind of ill-treatment. This principle was first established by the European Court in 1989 in the landmark case of
Soering v. the United Kingdom13.
Soering, a German national, who suffered from an abnormality of mind, had allegedly killed the parents of his
girlfriend in Virginia when he was 18 years old. He fled to
the United Kingdom, was apprehended there, and the United
States requested his extradition. Soering opposed the extradition and his case went up to the European Court. The Court
ruled that the United Kingdom would violate Article 3 if
Soering were extradited. As the European Convention does
not prohibit capital punishment, the Court could not reason
that Article 3 prohibits extradition in a case where the extradited person would face the death penalty. The Court concluded, however, that in Virginia, where Soering would have
to face trial, the average time between a death sentence and
execution were seven years. Living under the very severe
high-security regime on death row in a Virginia prison
would, according to the Court, expose Soering “to a real risk
of treatment going beyond the threshold set by Article 3”.
The Court did not specify whether the treatment would
amount to torture, inhuman or degrading treatment. As blame
was laid on prison conditions in the United States, such a
specification was obviously considered inappropriate from a
diplomatic point of view.
The Soering decision was remarkable for two reasons.
First, the case involved not a violation of the Convention
which had actually occurred, but a potential violation which
would take place if Soering was extradited. The Court considered it sufficient for Soering to show there was a “real
risk” of ill-treatment. Secondly, the violation of the Convention would in the Soering case not have happened in the
United Kingdom, the extraditing state, but rather in the
10
12
11
27.9.1999, ECHR 1999-VI.
4.12.1995, Series A 336.
13
18.12.1996, ECHR 1996-VI.
7.7.1989, Series A 161.
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United States. When forbidding extradition, the European
Court did not make the United Kingdom responsible for what
would happen outside its jurisdiction. The Court rather held
that in this case the obligation not to extradite “is inherent in
the general terms of Article 3”. Extradition “would plainly be
contrary to the spirit and the intendment of the Article”.
It is interesting to note that the UN Convention against
Torture contains a similar “inherent obligation” not to extradite a person to another state if there are “substantial grounds
for believing that he would be in danger of being subjected to
torture”. Unlike in the European Convention, the protection
of the UN Convention is restricted to cases where a person
would be tortured. On the UN level there is also no enforcement machinery comparable to the European Court.
Soering had a considerable impact on a great number of
deportation cases. In these cases the European Court applied
the same standards as in extradition cases. Among other
things, the Court evaluated whether there was a real risk of
ill-treatment in the state to which a person would be deported.
In the case of Chahal v. Great Britain (1996)14 the United
Kingdom had decided to deport an Indian national who supported a radical Sikh separatist movement in Punjab. Chahal
feared that, in case of his return to India, he would be subjected to ill-treatment by Indian authorities. The Indian Government guaranteed there would be no such ill-treatment. The
Court took this guarantee into consideration but concluded,
nevertheless, that the danger of ill-treatment was imminent.
On the other hand, the European Court held in H.L.R. v.
France (1997)15 that France could deport a Colombian drug
dealer who was apprehended by French authorities. The drug
dealer argued that he was afraid of acts of revenge by the
Colombian drug cartel, but the Court reasoned there was no
sufficient evidence an actual danger existed.
In a few cases the European Court stated that the danger
of ill-treatment must not be caused by a public authority.
Consequently, the Court found that deportation would violate
Article 3 in a case where there was a real risk that the deported person would be killed by a private party in a civil
war. German courts took a somewhat stricter position because they required that the risk of ill-treatment must come
from a public authority. There are serious doubts whether the
position taken by German courts is in conformity with the
European Convention.
V. Torture to Save Life?
In 2002, the Daschner case16 gave rise to an intense debate in
Germany whether torture or other kinds of ill-treatment by
public officials could be permitted under extraordinary circumstances. In this case, the eleven year old son of a rich
family was kidnapped. When the suspect was apprehended by
the police, he persistently refused to reveal where he was
hiding the child. Actually, the suspect had killed the child but
he left the interrogating officers with the impression that the
boy was still alive. To save the child’s life, Daschner, a sen14
15.11.1996, ECHR 1996-V.
29.4.1997, ECHR 1997-III.
16
LG Frankfurt a.M. NJW 2005, 692.
15
ior police officer, ordered a subordinate officer to threaten the
suspect with the use some kind of force, so the suspect would
speak. The suspect gave in to the threats and revealed where
the dead child was. Daschner and a subordinate officer were
charged with “coercion”. They had to stand trial at the end of
which the court handed down a decision that proved to be an
interesting compromise. The two defendants were found
guilty as charged but they were penalized only with a caution,
a sanction hardly ever imposed in a case of coercion.
The decision met with approval and criticism. Those who
approved of the conviction argued, above all, that the constitutionally protected human dignity of the suspect does not
permit the use of torture in any case, even not if the existence
of the whole country were in danger. They also referred to
the European Convention and the International Covenant
which do not permit any exception to be made from the prohibition of torture.
Those who opposed the decision answered, among other
things, that Daschner was not an ordinary torture case. It was
rather a case where the police invaded the human dignity of
the suspect in order to safe, as they thought, the life and human dignity of the kidnapped child. If the suspect had held
the child in his arms pointing a gun at his head and if there
was no other way of saving the child, the police would have
been authorized to shoot the suspect. In view of that it would
not seem plausible not to allow the police to threaten the
suspect with the use of violence, if such a threat appeared to
be the only way to safe the child. As to the absolute prohibition of torture in the European Convention and the International Covenant, it was argued that both instruments also
provide for the protection of human life and therefore must
be construed as not to outlaw ill-treatment if it is required to
safe another person’s life.
The debate in Germany proves that it is always difficult to
rely on general arguments when trying to solve an exceptional case. Exceptional cases should never be taken as a
basis for creating a general rule.
The debate in Germany is still going on. It should not be
overlooked, however, that the inner-German debate is different from the international debate about interrogation techniques used in Guantanamo Bay and so-called secret detention centers. The US Government argues that ill-treatment of
detainees in these facilities is necessary to protect the American people. Therefore, accepted interrogation techniques
should be broadened. To date, however, no proof has been
offered that the life of American citizens is in imminent danger and that ill-treatment of detainees at these facilities is the
only way of protecting American citizens.
VI. The Psychological Side of Torture
When talking about problems of torture, one should not forget that these problems can never be solved solely with the
help of legal provisions and sanctions. It will be necessary to
look at torture and other kinds of ill-treatment also from a
psychological point of view. The decisive question is how it
can happen that a person is willing to commit torture or other
acts of ill-treatment to another person. It would be wrong to
assume that those acts are committed because there are a few
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rotten apples, persons who are intrinsically bad. Public officials who commit torture or other kinds of ill-treatment are
not persons who beat their wives and children at home. The
famous Stanford Prison Experiment carried out by Professor
Zimbardo in 1971 rather demonstrated how a person can be
influenced, if not dominated, by the role he or she is playing.
In this Experiment, a group of normal young college students were put into a simulated prison. The group was randomly split into guards and prisoners. The experiment was
designed to last two weeks but it had to be ended prematurely
after six days. Some of the would-be prison guards quickly
took to their roles humiliating prisoners in an effort to break
their will and, thus, maintain order in the prison. When the
prisoners objected and finally rebelled, several guards became violent, abusive and even sadistic. In a few days the
prison atmosphere transformed its participants. The young
men who acted as prison guards were dominated by the roles
they played. Their behaviour revealed how much their new
roles could distort individual personalities. The guards lost
sight of reality. To them, the atrocities that were committed
became the “normal” life in the simulated prison.
Brutalities inflicted on detainees at Guantanamo Bay and
at Abu Ghraib confirm what Professor Zimbardo has demonstrated with his experiment. The same is obviously true as to
torture and other kinds of ill-treatment that can be found in
police stations, detention centers and prisons in many parts of
the world. The question is what can be done to take care of
these problems.
The first thing that comes to mind is re-education of police officers and other law enforcement officials. Important
steps in this direction have already been taken. The UN Convention against Torture of 1984 requires that “education and
information regarding the prohibition against torture are fully
included in the training of law enforcement personnel”. The
Convention further provides that in cases where the UN
Committee against Torture finds torture or other acts of illtreatment being committed in a signatory state, the Committee shall report its findings to that state and make “suggestions” which seem appropriate. It may be expected that the
Committee will in such cases, among other things, suggest
training and education.
A similar approach has been taken on European level. The
European Anti-Torture Committee prepares regular reports
on member states of the Council of Europe that will, if necessary, include “recommendations” as to further training of law
enforcement officials. In practice, the Anti-Torture Committee seems to exercise a relatively strict control. Member
states regularly cooperate with the Committee by announcing
that they will give higher priority to training of their personnel.
Cases decided by the European Court and the European
Commission as well as by courts on national level prove,
however, that there are still many instances of torture and
other kinds of ill-treatment in a number of European, mainly
east and southeast European countries. Training and reeducation do not always seem to work in an effective way.
One reason may be that instructions are mainly centered on
legal questions. It is, however, not sufficient to warn police
officers that it is against the law to beat detained persons and
that any act of ill-treatment will be punished. As can be expected, law enforcement officers are familiar with these prohibitions.
What will be necessary are instructions based on the experience of the Stanford Prison Experiment, explaining the
psychological implications of being a law enforcement officer. Police officers need to learn how to deal with conflict
situations and how best to avoid them. If possible, such instructions should also include role-play. This type of training
cannot be introduced overnight because it will require careful
planning and, above all, the participation of psychological
experts. It must also be expected that psychological training
will take considerable time, because human nature cannot be
changed easily.
VII. Concluding Remarks
There can be no question that it is necessary to have carefully
designed legal provisions to prohibit torture and other kinds
of ill-treatment. The main problem today is, however, that
these provisions are not always strictly enforced. It is obviously not sufficient to leave enforcement to the individual
countries. It is necessary to have international institutions –
the UN Committee against Torture, the European Court and
the European Anti-Torture Committee – to make the protection of the individual more effective. Serious efforts in this
direction have been taken by the United Nations and the
Council of Europe, but protection against torture and other
kinds of ill-treatment is far from being perfect. Efforts to stop
law enforcement authorities from practicing torture must go
on – not only in Europe but also in other parts of the world.
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